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The general counsel of the National School Boards Association (NSBA) is warning the U.S. Department of Education (ED) that recent federal guidance on bullying and harassment will create "adversarial climates that distract schools from their educational mission" and "invite misguided litigation" that school districts cannot afford. The NSBA's top lawyer, Francisco Negron Jr., stressed his organization's concern to reduce student bullying and harassment, but cited numerous concerns with the Department's approach to the problem.

"The expansive position on what conduct constitutes 'harassment' protected by federal civil rights laws and what remedial measures are legally required will unnecessarily complicate investigations and possibly expose school districts to liability beyond that envisioned by the Supreme Court," said Negron in a December letter to Charles P. Rose, the Education Department's general counsel.

The NSBA's concerns stem from a ten-page "Dear Colleague" letter sent by Assistant Secretary for Civil Rights Russlyn Ali to 15,000 public schools and school districts and 5,000 colleges and universities in late October. Ali claimed the guidance regarding administrators' responsibilities to protect students from discrimination or harassment based on race, color or national origin (Title VI), disability, or sex (Title IX) was "not new," but simply a reiteration of what had come from the Bush administration in 2001 and 2006. However, she admitted, this is the first time the ED has extended those older rules against discrimination to the current context of concerns about bullying, following several high-profile student suicides that advocates say were caused by anti-gay bullying.

Title IX sex discrimination legislation traditionally assured that women could not be denied access to educational programs and activities funded with federal dollars, i.e. it prohibited gender discrimination. Now, however, the Office for Civil Rights (OCR) under President Obama has expanded gender discrimination to include what the LBGT community calls "gender stereotyping." Ali acknowledged, "It is certainly the first time the department has made it clear that the gay, lesbian, bisexual, and transgendered community is protected by Title IX if they are bullied or harassed for not conforming to stereotypical gender roles."

One example of such gender stereotyping cited in the OCR advisory concerned a gay high school student who was harassed because he was effeminate. The school did not recognize the discrimination as being covered under Title IX, but should have, according to the letter. "It can be sex discrimination if students are harassed either for exhibiting what is perceived as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of masculinity or femininity," advised Ali.

NSBA lawyer Negron did not quibble with the Department's definition of what constitutes "sex discrimination," but instead focused on the numerous differences between the OCR guidelines and the standards set forth in Title IX and in a Supreme Court ruling concerning peer harassment, Davis v. Monroe County Board of Education (1999).

Negron said the OCR "significantly expands" the standard of liability for schools in several ways. Davis said schools were only liable if they had "actual knowledge" of harassment that was so "severe, pervasive, and objectively offensive" that it effectively barred the victim's access to the educational program or benefit. In contrast, the OCR holds schools liable for incidents about which "it knows or reasonably should have known" and covers harassment that is "severe, pervasive, or persistent" (versus all three), and that merely "interferes with or limits" participation in or benefit from an educational program. Each point of the OCR guidance softens the Davis ruling, said Negron.

Additionally, the OCR letter states that schools must eliminate harassment and the resultant hostile climate, and prevent future harassment. Davis, said Negron, "explicitly rejects" the idea that schools must remedy and prevent peer harassment, requiring only that schools need to respond "in a way that is not clearly unreasonable."

Negron also objected that the OCR guidance "only minimally" recognizes students' First Amendment free speech rights and ignores constitutional limitations on school districts' ability to punish students for exercising those rights. Additionally, he said, the ED is creating a "legal climate ripe for federal suits against school districts" by requiring school administrators to make "nuanced legal distinctions" about whether race and gender-based harassment fall within the Department's enforcement areas. That objection addresses the fact that current laws don't explicitly permit the OCR to address harassment based on sexual orientation, but the ED has expanded what constitutes sex discrimination to include gender stereotyping, which is often a factor in sexual orientation cases.

Kenneth Trump, President of National School Safety and Security Services in Cleveland, said the "NSBA is right on target and deserves kudos for openly challenging the Department of Education. The Department's broad interpretation of federal education civil rights law is questionable. The federal overreach into local control over school discipline and climate issues is unprecedented, unnecessary, and counterproductive to school administrators' efforts to maintain school safety."

Trump agrees that bullying is a serious problem, but is among critics who believe the new focus on gender stereotype bullying puts other school safety measures, including anti-violence and anti-drug programs, in jeopardy. He believes the ED is responding to pressure from gay-rights organizations. "The untold hidden story is an intensified effort by gay-rights and civil-rights advocates to rewrite civil-rights laws."

Trump isn't the only anti-bullying proponent who questions whether the new emphasis on gender that is being pushed by some civil rights and gay advocacy organizations will give short shrift to the very serious problem of violence by and against youths. "Teasing and bullying aren't an issue in our community. Youths killing and maiming other youths is," said Ron Moten, co-founder of Peaceoholics, a group working to prevent youth violence. "The new movement is not about children. It's about politics," he said.

Perhaps unintentionally, even some who want special protections spelled out for the gay community concede that the OCR guidance goes beyond the original intent of civil rights laws. Eliza Byard, executive director of the Gay, Lesbian, and Straight Education Network (GLSEN) said she was "struck by the fact that this administration is trying to do the most with what they have" in the absence of federal laws explicitly covering sexual orientation. GLSEN, the Leadership Conference, and numerous other liberal organizations have urged the Obama administration to expand and fund programs that specifically enumerate protections for lesbians, gays, bisexuals and transsexuals.

Currently, 44 state legislatures have passed anti-bullying statutes requiring school districts to adopt anti-bullying policies, often with specific elements and procedures; likewise, most state education agencies also have model policies that schools are required to incorporate by statute. The NSBA is hopeful that the ED will appropriately recognize the multiple standards districts must comply with as they pile on additional federal regulations. Negron also called upon the ED to "recognize, as the courts have" that "the professional judgment of educators is key to addressing the problem of bullying."

The real test of whether the ED will revise its regulations in light of the NSBA's concerns will be its response to actual cases. A spokesman for Arne Duncan confirmed that federal officials are investigating the Tehachapi Unified School District in central California, where a 13-year-old boy committed suicide in September after alleged harassment by his classmates because he was gay. Seth Walsh's mother complained that district officials failed to adequately address bullying of her son over a period of years. ED officials spent at least two days interviewing teachers, administrators and students, but have not yet released their findings. (Associated Press, 12-22-10; SchoolBoardNews.nsba.org, December 2010; The Washington Times, 10-28-10)

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